ings and record, and the court entered a judgment against the defendant, and surety in the appeal bond for the amount of the judgment against Williams, and costs. The record of the judgment concludes as follows: "And this judgment to be discharged by the garnishee turning over to the sheriff all the property in his hands, as shown by his answer, to be applied by the sheriff to the payment of plaintiff's claim against Williams, after satisfying garnishee's lien." The plaintiff appeals.

Sapp, Lyman & Ament, for appellant.

G. A. Holmes, for appellee.

ROTHROCK, J. It is claimed that the court should have sustained the motion to dismiss the appeal, because the judgment before the justice was rendered upon the admissions and confessions of the defendant in his answer as garnishee. The garnishee did not confess judgment in his answer; neither did he admit that plaintiff was entitled to a money judgment against him. The justice of the peace decided the case improperly upon the evidence submitted to him. The evidence showed that the garnishee had certain property in his hands belonging to Williams, upon which he, the garnishee, held a lien. He was entitled, before surrendering the property, to have provision made for the payment of his mortgage, and the justice of the peace should have rendered a conditional judgment against him, just as was rendered in the circuit court. The court was not authorized to make the holding of the property by defendant a money demand, without giving the defendant an opportunity to discharge it by surrendering the property upon provision being made for the payment of his lien. Such a judgment would have made the defendant a purchaser of the property, whether willing to purchase or not. There is nothing in these views inconsistent with any provision of the statute. They are in harmony with section 2988 of the Code. There was no error in the circuit court rendering such a judgment as the justice of the peace should have rendered. Affirmed.

A. J. BURBANK, Appellant, vs. W. WARWICK and others,

Appellees.

Filed December 6, 1879.

Where a mortgage was executed to secure a certain promissory note, never delivered, but afterwards destroyed by the maker, no consideration having actually been given for such mortgage, held, that an assignee of such mortgage acquired no rights that he could enforce.-[ED.

Appeal from Cass district court.

Action to foreclose a mortgage on real estate. There was a decree dismissing the petition, and the plaintiff appeals. H. G. Curtis, for appellant.

H. E. Griswold and Phelps & De Lano, for appellees.

SEEVERS, J. The mortgage, for such it is in legal effect, under the laws of this state, was executed by Mrs. Maria S. Swann in July, 1873. As recited therein it was given to secure the payment of a promissory note of even date therewith for $2,000, payable in four years, and executed by Mrs. Swann. The undisputed facts are that J. M. Swann was indebted to Mrs. Gricke, the mortgagee, in the sum of $1,300 or $1,400, and he applied to the mortgagor to aid him in paying said indebtedness, or to furnish him the mortgage so that money could be raised thereon and paid to Mrs. Gricke for the time being, but the payment of the mortgage was not to be enforced. Which of these propositions is true is disputed. However this may be the mortgage was executed and delivered to J. M. Swann, who delivered it to the mortgagee. It was held by the latter until September, 1875, when she or some one for her caused it to be filed for record.

In August, 1876, Mrs. Gricke sold, assigned and delivered the mortgage to the plaintiff. The defendant Warwick purchased the mortgaged premises of Mrs. Swann in June, 1876, and had full notice of the mortgage. Mrs. Gricke did not have the note in her possession when she assigned the mortgage to the plaintiff, but she testifies and is corroborated by the plaintiff that she represented to him it was in the hands of her agent or friend, J. M. Swann, and that she would get it and deliver it to the plaintiff. This, for reasons hereinafter appearing, she was unable to do. The further material facts are disputed, and must be determined by the evidence. Before entering into that branch of the case it is deemed best to state the relations of some of the parties and the witnesses to each other. Mrs. Swann has deceased. J. M. Swann is her son, and his wife is the sister of Mrs. Gricke.

The plaintiff, at the time of the several transactions, was, to some extent at least, the agent of Mrs. Gricke, and Reynolds, a witness for the defendants, is the grandson of Mrs. Swann. Mrs. Gricke testifies the note secured by the mortgage was delivered to her by J. M. Swann at the time the mortgage was, and that she afterwards gave it to him, as her agent or friend, to keep it for her. This is denied by Swann, who testifies his mother did not send him the note, and it never was in his possession.

Reynolds testifies that he, at the request of Mrs. Swann, drafted the note and mortgage, and "that about two or three weeks" thereafter Mrs. Swann "showed me the same note," and that, acting on his advice, about Christmas, 1873, she in his presence destroyed it. The foregoing is all the evidence which bears on the question of delivery of the note to Mrs. Gricke, and, we think, the preponderance of the evidence is that it never was delivered, and we so find. Both Mrs. Gricke and the plaintiff took the mortgage charged with notice it had been given to secure a promissory note, and they each knew the note was not delivered to them with the mortgage. Mrs. Gricke also knew there was no consideration for the mortgage.

Whether the note was negotiable, the evidence does not show. This, however, is believed to be immaterial, because the note, as a matter of fact, never was assigned to the plaintiff. All he got was the mortgage, and certainly it was not negotiable, so that an assignment thereof would cut off equities existing between the parties thereto. By the assignment of the mortgage the plaintiff succeeded to all the rights of Mrs. Gricke, and nothing more. It is regarded as doubtful whether an assignment of the mortgage carried with it the debt which was evidenced by the note. 1 Hilliard on Mortgages, 236. That such would not be the case of the note after the assignment of the mortgage had been indorsed to a holder in good faith, without notice, we incline to think is true. But as it is possible, as between these parties, the assignment of the mortgage would have that effect, the question is not determined. The defendant, having purchased the land with notice, has no better rights than Mrs. Swann.

The question to be determined, therefore, is whether if this action had been wrought by Mrs. Gricke against Mrs. Swann there could be a recovery. The terms and conditions of the mortgage would not estop Mrs. Swann from pleading and proving there was no consideration for the mortgage, or from establishing the non-delivery of the note. The mortgage does not purport to secure any indebtedness except that evidenced by the note, and herein is the distinction between this case and Brown v. Cascaden, 43 Iowa, 103. It cannot be doubted there was no consideration for the mortgage. This, as has been said, Mrs. Gricke knew. She gave up nothing for the mortgage, and there is no evidence tending to show that she released the debt of J. M. Swann, or that she forebore to bring suit thereon because of the mortgage, or that he is not just

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as able to pay now as when she received the mortgage. We therefore think the plaintiff cannot recover, without entering into a consideration of the disputed question as to how money was to be raised on the mortgage, and who was to repay it.

Affirmed.

L. BAYERS, Appellee, vs. C., R. I. & P. R. Co., Appellant.

Death of one member of a firm dissolves the partnership, but the survivors are jointly and severally liable for the unperformed contracts of the firm. Rule applied in this case.-ED.

On rehearing.

ROTHROCK, J. In the foregoing opinion it is assumed that the surviving member of the firm of Queally & Bro. was legally bound to complete the contract, notwithstanding the death of the other member of the firm. The question as to the correctness of this proposition was not presented in the original submission. A petition for rehearing was filed, which was mainly devoted to this question, and a reargument was ordered. Counsel have discussed the question elaborately and with much force, and many adjudicated cases have been cited which discuss the effect of the death of one of several partners upon the existing contracts of the partnership. Other arguments are also advanced by counsel for appellee as reasons why the judgment should be affirmed. We are content with the conclusion reached in the opinion, and with the grounds thereof, and passing all other considerations will briefly discuss the principal propositions which are argued on the rehearing.

The death of one member of a partnership works a dissolution of the firm; but the partners are jointly and severally liable for the performance of the partnership contracts, and any one or all of the partners may be sued upon a contract made by the firm. Code, § 2553. In Parsons on Partnership, (2d Ed.) 409, it is said: "No dissolution of any kind affects the rights of third persons who have had dealings with the partnership without their consent. This is a universal rule, without any exception whatever." It is true the surviving partner cannot continue the partnership business; that is, he cannot make new engagements and contracts, and bind the personal representatives of the deceased partner, but the survivor may and he is bound to perform the contracts en

tered into before the death of his copartner. It is his right and duty to perform and fulfil exisisting contracts, and to wind up the partnership. There is, it is true, a class of cases that hold that when a contract requires peculiar skill, or the actual personal services of the contracting party, the contract terminates with the death of the party bound to render such personal service, or exercise such peculiar skill. Of this class of cases are contracts for personal labor, or for publishing a book, editing a newspaper, and the like. Jenings v. Lyon, 39 Wis. 554; Wolf v. Hones, 20 N. Y. 197. In the last named case it is said (quoting from Story on Bailments) that the true rule may be considered to be "that where the contract is for personal services which none but the promissor can perform, then inevitable accident or the act of God will excuse the non-performance, and enable a party to recover upon a quantum meruit. But where the thing to be done or the work to be performed may be done by another person, then all accidents are at the risk of the promissor."

It is argued with much earnestness and force that the death of Queally operated to determine the contract, because the performance thereof was such as to require his personal services. This cannot be admitted. It appears from the evidence that while the work was in progress he was at no time personally present, but that it was carried on by one Weed. Besides, it must be presumed that the surviving partner was competent to carry on and complete the contract. One object in contracting with a partnership is that there may be more than one person capable of carrying out and performing the undertaking, and more thau one person bound for its performance. Besides, the nature of the work was not such as is contemplated by the rule that a contract for personal services or the exercise of peculiar skill is terminated by the death of the party by whom the labor is to be performed, or the skill exercised.

In the case of McCord v. West Feliciana R. Co. 3 La. An. 285, when a railway contract was let to a partnership, and one member of the firm died, it was held that the death of the partner dissolved the partnership and terminated the contract. It is claimed by counsel for appellee that the case is precisely in point upon the question under discussion; but that case was determined under the provisions of a statute of the state of Louisiana, which is wholly unlike any statute in force in this state, and not applicable here. The foregoing propositions of law are really not controverted by counsel.